in Re Shayna (Deboise) Herring ( 2015 )

ACCEPTED
01-14-00989-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/11/2015 6:27:25 PM
CHRISTOPHER PRINE
CLERK
Cause No. 01-14-00989-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
In the First Court of Appeals
2/11/2015 6:27:25 PM
Houston, Texas
CHRISTOPHER A. PRINE
Clerk
In Re SHAYNA (DEBOISE) HERRING,
Relator
Original Proceeding from Cause No. 2010-45732
From 247TH Judicial District Court of Harris County, Texas
The Honorable John Schmude, Presiding
REAL PARTY IN INTEREST’S RESPONSE TO PETITION FOR
WRIT OF HABEAS CORPUS
CASTON LEE DEBOISE Of Counsel:
REAL PARTY IN INTEREST/PETITIONER
TERISA TAYLOR
State Bar No. 24000240
GRACE M. CRUMP
State Bar No. 24083482
LAW OFFICE OF TERISA TAYLOR, P.C.
917 Franklin Street, Suite 510
Houston, Texas 77002
Tel: (713) 224-990
Fax: (713) 224-9903
ATTORNEYS FOR REAL PARTY IN INTEREST
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ............................................................................................... i
APPENDIX .................................................................................................................... ii
INDEX OF AUTHORITIES ............................................................................................ ii
STATEMENT OF THE CASE ..................................................................................... 1
LAW AND ARGUMENTS .......................................................................................... 4
I. It was Proper for the Trial Court to Hold Relator in Contempt for Failing to
Comply with One Provision of the Court’s Order Under the Facts of this Case ..... 4
II. The Order Holding Respondent in Contempt and for Commitment to County
Jail Signed on December 11, 2014 is Not Void ...................................................... 6
III. The Trial Court Did Not Have A Duty to Admonish Relator of Her Right to a
Jury Trial ................................................................................................................ 7
IV. The Court Did Not Commit Error by Awarding Real Party in Interest 180
Days as Make-Up Periods of Possession ............................................................... 8
V. Given the Evidence Presented, The Court Did Not Commit Error in Finding
Relator to Be in Contempt ....................................................................................... 12
CONCLUSION ............................................................................................................. 14
RELIEF SOUGHT ......................................................................................................... 15
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APPENDIX
Motion for Enforcement by Contempt of Possession and Access and Order to Appear,
Filed April 24, 2013 ......................................................................................................... A
Opposed Motion to Enter Order Holding Respondent in Contempt,
Filed November 22, 2013…………………………………………………………… B
Opposed Motion to Enter Order Holding Respondent in Contempt,
Filed May 9, 2014 …………………………………………………………………... C
Order Holding Respondent in Contempt and for Commitment to County Jail …….. D
Motion to Compel Commitment to County Jail ……………………………………. E
Respondent’s Special Exceptions ………………………………………………… F
INDEX OF AUTHORITIES
CASES Page
Muniz v. Hoffman, 422 U.S. 454 (1975) ........................................................ 7
Taylor v. Hayes, 418 U.S. 488 (1974) ................................................................ 8
Byrd v. State, 336 S.W.3d 242 (Tex.Crim.App. 2011) ......................................... 12, 13
Ex Parte Browne, 543 S.W.2d 82 (Tex.1976) ..................................................... 4
Ex Parte Chambers, 898 S.W.2d 257 (Tex.1995)................................................ 4
Ex Parte Gordon, 584 S.W.2d 686 (Tex. 1979) .................................................. 9
Ex Parte Merrikh, 361 S.W.3d 209 (Tex. App.—Houston [14th Dist.] 2012) ....... 9
Ex Parte Rohleder, 424 S.W.2d 891 (Tex. 1967) ................................................ 9
Ex Parte Stein, 331 S.W.3d 538 (Tex. App.—Houston [14th Dist.] 2011) ............ 9
Ex Parte Werblud, 536 S.W.2d 542 (Tex. 1976) ................................................. 7, 8
ii
In re Corder, 332 S.W.3d 498 (Tex.App. – Houston [1st Dist.] 2009) ................... 8
In re Long, 984 S.W.2d 623 (Tex. 1999) ............................................................ 9
In re Prudential Ins. Co. of America, 148 S.W.3d 124 (Tex. 2004) ...................... 9
Walker v. Parker, 827 S.W.2d 833 (Tex. 1992) .................................................. 10
STATUES Page
18 U.S.C.A. §1 .................................................................................................... 7
Tex. Fam. Code §153.704 ..................................................................................... 12
Tex. Fam. Code §153.705 ..................................................................................... 12
Tex. Fam. Code §157.006 ..................................................................................... 4
Tex. Fam. Code §157.111 ..................................................................................... 4
Tex. Fam. Code §157.168 ................................................................................. 10
Tex. Gov’t Code §21.002 ................................................................................... 8
Tex. Rule of Civ. Proc. §94 ............................................................................... 4
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STATEMENT OF FACTS
On January 31, 2011, the 247th Judicial District Court of Harris County, Texas, signed an
Agreed Order in Suit Affecting the Parent-Child Relationship and Declaratory Judgment. That
Order appointed Relator and Real Party in Interest as joint managing conservators of the child
the subject of the suit. Relator was granted the exclusive right to designate the primary residence
of the child within Harris and contiguous counties. Real Party in Interest was granted a standard
possession order. Both parties were granted telephone access to the child to supplement their
periods of possession and a right of first refusal to care for the child in the event the parent
currently entitled to possession would be away from the child for four or more hours.
On April 24, 2013, Real Party in Interest filed a Motion for Enforcement by Contempt of
Possession and Access and Order to Appear. (Real Party in Interest’s Exhibit A). On June 25,
2013, Relator filed a Petition to Modify Parent-Child Relationship. A hearing on Real Party in
Interest’s Enforcement was held on June 26, 2013 and Relator appeared with counsel. On June
26, 2013, the trial court found Relator in contempt on 12 separate violations of the court’s order.
Relator was ordered to serve 180 days in the Harris County Jail on each weekend beginning June
28, 2013. Relator was ordered to pay attorney’s fees to Real Party in Interest’s attorney in the
amount of $2,545.40 and Real Party in Interest was granted possession of the child while Relator
was confined to the Harris County jail each weekend.
At the entry of the Order Holding [Relator] in Contempt and for Commitment to County
Jail, Relator appeared with new counsel and requested a new trial based on ineffective assistance
of counsel. The entry of the Order was reset and the trial court ordered the parties to mediate.
The parties attended mediation on October 24, 2013 and it resulted in an impasse. On October
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30, 2013, Real Party in Interested filed an Opposed Motion to Enter Order Holding [Relator] in
Contempt and a hearing was set for November 22, 2013. (Real Party in Interest’s Exhibit B).
On November 22, 2013, at the hearing to enter the Order holding Relator in contempt, the
trial court ordered both parties to submit trial briefs on whether Relator was entitled to a
rehearing. Both parties submitted briefs to the trial court on December 2, 2013. Subsequently, the
Court made no rulings on Relator’s request for new trial and did not sign the Order holding
Relator in contempt. On May 9, 2014, Real Party in Interest filed a second Opposed Motion to
Enter Order Holding [Relator] in Contempt and for Commitment to County Jail. (Real Party in
Interest’s Exhibit C).
On August 26, 2014, without a hearing or notice to either party, the trial court signed the
Order holding Relator in contempt. (Real Party in Interest’s Exhibit D). The visiting judge
amended the order to command Relator to begin serving her 180 days sentence on August 24,
2014 and requiring her to pay attorney’s fees to Real Party in Interest’s attorney by September 1,
2014.
On or about September 8, 2014, Relator hired yet another attorney, who filed a Motion
for New Trial on September 25, 2014. On September 26, 2014, Real Party in Interest filed a
second Motion for Enforcement by Contempt of Possession and Access and Order to Appear.
During this period, Relator failed to report to the Harris County Jail for commitment on the
weekends. On October 30, 2014, Real Party in filed a Motion to Compel Commitment to County
Jail. (Real Party in Interest’s Exhibit E). A hearing on both Real Party in Interest’s motions was
heard on December 8, 2014.
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On December 8, 2014, the trial court declined to commit Realtor to jail under the first
Order holding her in contempt citing too much time had passed. The trial court then found
Relator in contempt on one violation from Real Party in Interest’s second Motion for
Enforcement and ordered her to 180 days in the Harris County jail to be served on the weekends
beginning Friday, December 12, 2014. The trial court also ordered a make-up period of
possession for Real Party in Interest and ordered Real Party in Interest to have possession of the
child while Relator served her weekends in jail. The trial court also ordered Relator to pay an
additional $3,000 in attorney’s fees to counsel for Real Party in Interest.
The Order holding Relator in contempt and ordering her commitment to the Harris
County jail was entered and signed by the Court on December 11, 2014.
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I. IT WAS PROPER FOR THE TRIAL COURT TO HOLD RELATOR IN
CONTEMPT FOR FAILING TO COMPLY WITH ONE PROVISION OF THE
COURT’S ORDER UNDER THE FACTS OF THIS CASE.
The Texas Supreme Court has broadly defined contempt as "disobedience to or disrespect
of a court by acting in opposition to its authority." Ex parte Chambers, 898 S.W.2d 257, 259
(Tex.1995) (orig. proceeding). The Supreme Court also observed that contempt is a broad
and inherent power of a court. See, Ex parte Browne, 543 S.W.2d 82, 86 (Tex.1976) (orig.
proceeding).
With this issue, Relator is essentially claiming that she had an affirmative defense of
justification in violating the trial court’s possession order. Under the Texas Rules of Civil
Procedure, any and all affirmative defenses must be affirmatively pled. TRCP 94. Relator
failed to file a general denial in this case, let alone an answer that pled affirmative defenses.
Relator should be precluded from arguing her affirmative defense for the first time in her
Petition for Writ of Habeas Corpus.
Additionally, under the Texas Family Code, the respondent in a motion for enforcement
must prove affirmative defenses by a preponderance of the evidence. Tex. Fam. Code.
§157.006 (b). The trial court had the benefit of hearing live testimony from several witnesses,
including Relator, SHAYNA (DEBOISE) HERRING, and Real Party in Interest, CASTON
LEE DEBOISE. As the exclusive judge of the credibility of the witnesses, the trial court did
not believe Relator's testimony that she withheld visitation in an attempt to protect the child
from Real Party in Interest, (CR 74-5, 79, 81-2). The evidence regarding Relator withholding
visitation from Real Party in Interest included evidence that Relator also withheld visitation
from the father of another one of her children the same day, (CR 37), ignored text messages
and phone calls from both fathers, (CR 34-7, 46, 83-5), did not file any emergency pleadings
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with the trial court to suspend Real Party in Interest’s periods of visitation, (CR 50 and 86-7)
and has a history of withholding visitation and alienating the child from the Real Party in
Interest, (CR 20-2, 38-9, 43-4, 93-7), supported a reasonable belief that Relator violated the
possession order out of malice and not out of a duty to protect the child, (CR 93-5, 97-8).
This was a thinly veiled attempt to justify her actions as in the child’s best interests,
when, in fact, they are simply to create disruption and discord, and to try to alienate the Real
Party in Interest from his child. The Relator’s true motives are exposed by the fact that she
made no efforts to try to have authorities or the courts intervene; if she had a genuine concern
for their child’s safety, she would have filed emergency pleadings with the court to modify
Real Party in Interest’s possession of the child. The trial court did find that Relator has
proved her defenses by a preponderance of the evidence.
Additionally, in her Petition for Writ of Habeas Corpus, Relator claims that her attorney
on August 15, 2014 “was unable to advise her what to do” on that date. (Relator’s Petitioner
for Writ of Habeas Corpus, page 10). However, at the hearing on Real Party in Interest’s
Motion for Enforcement, Relator clearly stated multiple times that she consulted her attorney
and was advised by her attorney what to do in that situation, (CR 81, 85-6). Regardless, the
advice of Relator’s attorney on August 15, 2014 is not a defense to the Motion for Contempt.
Tex. Fam. Code §157.111.
Finally, to allow Relator to use her duty to protect the child as both a sword and a shield
would be against public policy. Permitting Relator to withhold visitation because of an
alleged potential harm to the child would set a dangerous precedent. Parents would be
allowed to withhold visitation because of the mere possibility the child and the other parent
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might get into a car accident while driving away from the first parent’s residence. For all the
reasons stated above, it was proper for the trial court to hold Relator in contempt for failing
to comply with one provision of the court’s order under the facts of this case, and if
necessary, order a new start date.
II. THE ORDER HOLDING RESPONDENT IN CONTEMPT AND FOR
COMMITMENT TO COUNTY JAIL SIGNED ON DECEMBER 11, 2014 IS NOT
VOID.
During its rendition on December 8, 2014, the trial court told Relator no less than three
times where she was to report to jail and on what date and time, (CR. 93-5). The trial court was
extremely clear about when Relator’s commitment to the Harris County jail was to commence
and there can be no doubt in Relator’s mind as to when and where she was to report. The date on
the Order signed by the Court ordering Relator to submit herself to the county jail on June 28,
2013, (Relator’s Exhibit 3, page 3), was clearly a drafting error. Counsel for Relator was
provided with a copy of the Order Holding Relator in Contempt and for Commitment to County
Jail prior to the entry of the Order on December 11, 2014. Counsel for Relator did not provide
counsel for Real Party in Interest any proposed changes to the Order, refused to sign the Order
and did not appear at the entry. Instead, counsel for Relator addresses this issue for the first time
in his Petition for Writ of Habeas Corpus. The paper order signed by the trial court judge is
simply the memorialization of the order rendered by the judge on December 8, 2014; the order
rendered by the judge is the one, repeated throughout the record, that the Relator is to turn
surrender herself to the custody of the Harris County Jail at 6:00 p.m. on December 12, 2014.
Therefore, the Order holding Relator in Contempt is not void.
However, if this Court finds that the Order Holding Respondent in Contempt and for
Commitment to County Jail is void because of the drafting error, the remedy is not to hold that
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the entire order is void. If this Court finds that the order is void for the drafting error, the Real
Party in Interest requests this Court to remand the Order to the trial court for a correction to the
date, and if necessary, order a new date for Relator to begin commitment in the Harris County
jail.
III. THE TRIAL COURT DID NOT HAVE A DUTY TO ADMONISH RELATOR
ON HER RIGHT TO A JURY TRIAL.
The trial court did not have a duty to admonish Relator on her right to a jury trial because
in this case Relator did not have a right to a jury trial. In a contempt case, a contemnor’s right to
a jury trial depends on whether the offense may be classified as petty or serious. Ex parte
Werblud, 536 S.W.2d 542, 546 (Tex. 1976). The difference between a petty offense and a serious
offense was most notably established in the United States Supreme Court decision in Muniz v.
Hoffman, 422 U.S. 454 (1975). Muniz established the following rules:
“(1) Like other minor crimes, 'petty' contempts may be tried without a jury, but
contemnors in serious contempt cases in the federal system have a Sixth Amendment
right to jury trial;
(2) criminal contempt, in and of itself and without regard for the punishment imposed, is
not a serious offense absent legislative declaration to the contrary;
(3) lacking legislative authorization of more serious punishment, a sentence of as much as
six months in prison, plus normal periods of probation may be imposed without a jury
trial;
(4) but imprisonment for longer than six months is constitutionally impermissible unless
the contemnor has been given the opportunity for a jury trial.”
Id., at 475-6. Under Federal criminal law, six months imprisonment is the litmus test for
determining whether an offense is considered a petty offense or a serious offense. 18 U.S.C.A. §
1(3). A Federal Court that uses its contempt authority to punish a contemnor for a period of time
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that is not more than six months does not have to grant a jury trial on that issue to the contemnor.
Taylor v. Hayes, 418 U.S. 488, 94 S. Ct. 2697 (1974).
The State of Texas follows suit. Ex parte Werblud, 536 S.W.2d 542 (Tex. 1976). The statute
which authorizes punishment for criminal contempt allows punishment by a fine of not more
than $500, or by confinement in the county jail for not more than six months, or both. Tex. Gov’t
Code §21.002(b). Additionally, this Court ruled in In re Corder, that the trial court’s duty to
admonish the contemnor of their right to a trial by jury only arises if serious punishment is
actually imposed. In re Corder, 332 S.W.3d 498, 501 (Tex.App. – Houston [1st Dist.] 2009).
The trial court’s duty to admonish the contemnor is not triggered by the fact that serious
punishment is a possible outcome. Id.
In this case, Real Party in Interest pled for contemnor to be jailed for not more than 180
days for each violation, and fined not more than $500 for each violation alleged in his Motion for
Enforcement by Contempt of Possession and Access. (Relator’s Exhibit 1, page 6). Relator was
found to be in in contempt and punishment for each separate violation was assessed at
confinement in the county jail of Harris County, Texas, for a period of 180 days, or 6 months.
(Relator’s Exhibit 3, pages 2-4). The actual punishment imposed on contemnor did not exceed
180 days. (Relator’s Exhibit 3, pages 2-4). Therefore, the trial court did not have a duty to
admonish Relator on her right to a jury trial.
IV. THE COURT DID NOT COMMIT ERROR BY AWARDING REAL PARTY IN
INTEREST 180 DAYS AS MAKE-UP PERIODS OF POSSESSION.
Whether the trial court erred in awarding Real Party in Interest 180 days as make-up
visitation for the three days the trial court found that Relator had withheld is an issue that should
be considered in an original mandamus proceeding and not through a Petition for Writ of Habeas
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Corpus. Additionally, Relator cannot show that the trial court erred in ordering the make-up
periods of possession or that harm occurred from that order.
a. Whether the trial court erred in granting Real Party in Interest 180 days in make-
up visitation is an improper issue to be presented in a Petition for Writ of Habeas
Corpus.
Whether the trial court erred in granting Real Party in Interest 180 days in make-up
visitation is an improper issue to present to this Court through a Petition for Writ of Habeas
Corpus. The proper vehicle to address this issue with this Court would normally be through a
Writ of Mandamus. An Order of Mandamus is issued to correct a clear abuse of discretion by the
trial court when there is no adequate remedy by appeal. In re Prudential Ins. Co. of America,
148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). Since contempt orders are not
reviewable by appeal, if a trial court abuses its discretion by holding someone in contempt, there
is no other adequate remedy by appeal, and the second requirement of mandamus review is
satisfied. In re Long, 984 S.W.2d 623, 625 (Tex. 1999).
In Texas Family Law, a habeas corpus proceeding is a collateral attack on a contempt
judgment. Ex parte Merrikh, 361 S.W.3d 209, 210 (Tex. App.—Houston [14th Dist.] 2012, orig.
proceeding) (per curiam); In re Stein, 331 S.W.3d 538, 540 (Tex. App.—Houston [14th Dist.]
2011, orig. proceeding) (per curiam); see also Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex.
1967) (orig. proceeding). The purpose of a writ of habeas corpus is only to determine whether
the underlying contempt action met the requirements of due process of law or if the underlying
contempt or order of contempt was void. Merrikh, 361 S.W.3d at 210; Stein, 331 S.W.3d at 540;
see also Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979) (orig. proceeding).
9
The issue of whether the trail court erred in granting Real Party in Interest 180 days of
make-up visitation is an issue of abuse of discretion and is not an issue of due process or whether
the contempt order is void.
b. The trial court did not err in granting Real Party in Interest 180 days of make-up
periods of possession.
The Texas Family Code permits a trial court to award additional periods of possession
and access to a party to compensate for a pervious denial of court-ordered possession or access.
Tex. Fam. Code § 157.168(a). It is wholly within the discretion of the trial court to determine
whether to grant such an award. However, if the trial court chooses to grant the award, the
additional periods of access or possession "must be of the same type and duration of the
possession or access that was denied." Id. A trial court abuses its discretion when it reaches a
decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
In this case, Real Party in Interest was entitled to possession of the child “beginning at
6:00 p.m. on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the
following Sunday.” (Relator’s Exhibit 2, page 10). The trial court found that Relator had denied
Real Party in Interest one of his weekend periods of possession. (Relator’s Exhibit 3, page 2).
The trial court specifically granted Real Party in Interest an additional period of possession
beginning at 6:00 p.m. on December 12, 2014 and ending at 6:00 p.m. on the following Sunday
to compensate Real Party in Interest for the period of possession he was denied on August 15,
2014. (Relator’s Exhibit 3, page 4). This additional period of possession was clearly of the same
type and duration of the period that was denied.
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Additionally, the trial court ordered Real Party in Interest to have possession of the child
beginning at 6:00 p.m. on December 12, 2014 and each Friday thereafter for as long as Relator
was serving her weekend periods of confinement. (Relator’s Exhibit 3, page 4). Under the
Agreed Order in Suit Affecting Parent-Child Relationship and Declaratory Judgment, Real Party
in Interest was already entitled to possession of the child for roughly half of the weekends that
Relator was ordered to be confined in the Harris County Jail. (Relator’s Exhibit 2, pages 9-17).
Therefore, Relator’s argument that Real Party in Interest was ordered 180 days of make-up
visitation is inaccurate at best and misleads this Court. Further, Relator did not bring this issue to
the trial court’s attention (CR 93-7), and instead complains about for the first time in her Petition
for Writ of Habeas Corpus.
Finally, the trial court has broad discretion to enforce its orders. At the enforcement
hearing, the trial court heard evidence that Relator continuously thumbs her nose at the trial court
and its orders, (CR 83-7, 93-8). The trial court also heard evidence that Relator has continuously
acted in bad faith and set out a course of conduct to alienate the child from Real Party in Interest
(CR 30-72). Furthermore, the trial court heard evidence that Relator often engages her family
members to assist her in setting out this course of conduct, (CR 39). It is with this evidence in
mind that the trial court ordered Real Party in Interest to have possession of the child while
Relator served her periods of confinement in the Harris County Jail.
c. Alternatively, any error in granting make-up visitation was harmless error.
Should the Court find that the trial court erred in awarding Real Party in Interest 180 days
as make-up periods of possession when the evidence showed that he had missed only three days,
it should also find that it was harmless error. It is a steadfast rule of Texas Family Law that the
superior right of possession that is granted to a parent through a possession order is for the
11
benefit of that parent and is intended to be exercised by that parent. The superior right of
possession established by a possession order cannot be transferred to a step-parent, grandparent,
or any other relative in the absence of the parent with the superior right of possession. The only
time the Texas Legislature has ever carved out an exception that allows a parent to designate a
third party to exercise that parent’s period(s) of possession is in the case of active duty military
members. See, Tex. Fam. Code §153.704 & 153.705. It is clear that in most cases the Texas
Legislature never intended for visitation to be exercised by a step-parent, grandparent, or other
relative in the absence of a parent.
In this case, with Relator ordered to spend every weekend in jail until she had served 180
days, Real Party in Interest would be the only person entitled to possession of the child during
Relator’s absence. Additionally, pursuant to the underlying Agreed Order in Suit Affecting
Parent-Child Relationship and Declaratory Judgment signed by the trial court on January 31,
2011, Real Party in Interest is entitled to a right of first refusal in the event that Relator will be
away from the child for four hours or more. (Relator’s Exhibit 2, page 17). Therefore, if the trial
court erred in awarding Real Party in Interest 180 days as make-up periods of possession when
the evidence showed that he had missed only three days it would be harmless error because
Relator cannot designate a third party to exercise her periods of possession while she is in jail
and Real Party in Interest would have simply notified Relator of his intent to exercise his right of
first refusal.
V. GIVEN THE EVIDENCE PRESENTED, THE COURT DID NOT COMMIT
ERROR IN FINDING RELATOR TO BE IN CONTEMPT.
Any variance in this case between the allegations contained in Real Party in Interest’s
Motion for Enforcement and evidence presented at the hearing is immaterial. In Byrd v. State, the
12
Texas Court of Criminal Appeals lays out a definition for variance and an informative discussion
on the difference between marital and immaterial variances:
“Now suppose that the State proves that the defendant killed Dan McGrew, but every
witness agreed that Dan was not at all dangerous and had never been called Dangerous.
Or suppose that the evidence showed that the murder victim was really Don McGrew,
Daniel Macgrew, or Dan Magoo. These are all examples of variances between the
allegation and the proof, but they are little mistakes, generally not likely to prejudice a
defendant's substantial rights by either (1) failing to give him notice of who it was he
allegedly killed, or (2) allowing a second murder prosecution for killing the same person
with a different spelling of his name. Little mistakes or variances that do not prejudice a
defendant's substantial rights are immaterial. On the other hand, a conviction that
contains a material variance that fails to give the defendant sufficient notice or would not
bar a second prosecution for the same murder requires reversal, even when the evidence
is otherwise legally sufficient to support the conviction.”
Byrd v. State, 336 S.W.3d 242, at 246-8 (Tex.Crim.App. 2011).
Pursuant to the underlying Agreed Order in Suit Affecting Parent-Child Relationship and
Declaratory Judgment, Real Party in Interest was permitted to designate any competent adult to
pick up the child at the beginning of Real Party in Interest’s periods of possession. (Relator’s
Exhibit 2, page 17). On August 15, 2014, Real Party in Interest designated the father of Relator’s
eight year old daughter to pick up his son at the beginning of Real Party in Interest’s period of
possession, (CR 45-6, 79). The other father was acting as an agent of and as an extension of Real
Party in Interest. Additionally, there was testimony that the fathers often pick up the children
together or that one father will pick up both children, (CR 32-3, 38-9, 40). Relator was on notice
that day that Real Party in Interest was sending a third party as his proxy. (CR 79). Further,
Relator stated that had Real Party in Interest not sent a proxy, she still would have denied him
visitation on August 15, 2014 (CR 79). Relator knew exactly whose possession of the child she
was denying. Therefore, any variance between the alleged violations and the evidence presented
at the hearing is immaterial.
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Finally, once again, Relator complains of this issue for the first time in her Petition for
Writ of Habeas Corpus. The alleged violation that Relator complains of in this issue was
“Violation 2” of Real Party in Interest’s Motion to Enforce (Relator’s Exhibit 1, page 5). On
November 12, 2014, Relator filed special exceptions to Real Party in Interest’s Motion to
Enforce. (Real Party in Interest’s Exhibit F). Relator did not specially except to “Violation 2”.
(Real Party in Interest’s Exhibit 1, pages 1-3).
For the reasons stated above, the trial court did not err finding Relator in contempt.
CONCLUSION
The finding of contempt by the trial court was proper given the pleadings on file, the
evidence presented and the arguments made by counsel. Additionally, the Order Holding
Respondent in Contempt and for Commitment to County Jail is valid and should be enforced.
This Habeas processing is just another attempt by Relator to use smoke and mirrors to avoid
being held responsible for her violations and contempt. Relator has no respect for the judicial
system or the orders of the Court.
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RELIEF SOUGHT
Real Party in Interest requests that the Court of Appeals deny Relator's Writ for Habeas
Corpus.
In the alternative, Real Pai1y in Interest requests the Court of Appeals to sever any
provisions of the Order it finds void and remand those provisions back to the trial court for
coITection.
Respectfully submitted
BycE,.•.- r1 -
TERISA TAYLOR
State Bar No. 24000240
6rf2
GRACE M. CRUMP
State Bar No . 24083482
9 17 Franklin Street, Suite 5 10
Houston, Texas 77002
Tel: (713) 224-9900
Fax: (713) 224-9903
Attorneys for Caston Lee DeBoise
WORD COUNT
I, GRACE M. CRUMP, do hereby certify that the forego ing document contains 4,408
words.
c&.- Li. {!_~rr
GRACE M. CRUMP
15
CERTIFICATE OF SERVICE
I certify that on February 11 , 2015, a true and correct copy of this Response to Relator's
Petition for Writ of Habeas Corpus was served upon Relater and Respondent in accordance with
the Texas Rules of Civil Procedure and Appellate Procedure by eService and facsimile
transmission, to:
Judge John Schmude
24i11 Judicial District Court
201 Caroline Street, 15 111 Floor
Houston, TX 77002
George W. Dana
11550 Fuqua, Suite 340
Houston, Texas 77934
Tel: (281) 484-7500
Fax: (281) 484-9687
TERISA TAYLOR
GRACE M. CRUMP
Attorneys for Real Party in
Interest/Petitioner
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